MANOHAR SINGH BHANDARI Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Shri S.P. Verma, learned counsel for the applicant in revision.

(2.) This revision is directed against the order of revisional court whereby the the order of the City Magistrate passed under Sec. 145 Crimial P.C. has been set aside and the case has been sent back to the Magistrate for deciding the question of possession afresh after giving an opportunity to both the parties to adduce their oral evidence. It appears that while deciding the question of possession the learned Magistrate had acted upon affidavits filed from the side of both the parties. In the new Code of Criminal Procedure there has been a substantial change from the one which earlier existed. Now sub-section (4) of Sec. 145 Crimial P.C. specifically states that Magistrate shall make an inquiry relating to actual possession on the basis of evidence as may be produced by the parties and after taking such further evidence, if any, as he thinks necessary, shall decide the question of possession. It is now well settled that under this new provision it is a condition precedent for passing of final order under Sec. 145 that Magistrate receives such evidence as may be produced before him. It is no more permissible for the Magistrate to decide the question of possession merely on the basis of affidavits. Since in the present case no opportunity was given to the parties to adduce oral evidence on oath regarding their claim relating to actual possession of the subject-matter in dispute, the order of learned Magistrate declaring possession of applicant in revision was not sustainable and has rightly been set aside by the revisional court. The revisional court after setting aside the said order has himself not recorded his own finding on the question of possession and has left the matter open to be decided by the Magistrate concerned afresh after giving opportunity to the parties to adduce evidence. It is not a case where finding of fact has been reversed by the revisional court and substituted by its own findings.

(3.) For what has been stated above this court finds that this revision has no merit and must be dismissed. Revision is accordingly dismissed. Interim order dated 14.7.2000 is hereby vacated. Revision dismissed.